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Court of AppealDismissedCivil Appeal No. 78 of 2005· [2008] KECA 322 (KLR)

Transworld Safaris (K) Limited v Robin Makori Ratemo [2008] KECA 322 (KLR)

Court of Appeal of Kenya
15 February 2008
SBS. E. BosireJOJ. W. Onyango OtienoEGE. M. Githinji
8,429 words in judgment
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The bottom line

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Kenya's Court of Appeal held a safari company fully liable for a hot air balloon explosion, ruling that procedural slips and unpleaded laws don't defeat a claim both sides actually argued.

What this practically means

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Executive summary

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This was the respondent's claim for injuries sustained when a hot air balloon operated by the appellant exploded and caught fire at take-off at the Sarova Mara Lodge on 12 July 2000. The High Court (Bauni J.) found the appellant 100% liable in negligence and awarded Kshs.4,326,610 in damages. On appeal, the appellant argued the suit was incompetent because the respondent failed to file an amended plaint pleading the Carriage by Air Act 1993 and the Warsaw Convention, that the claim was time barred under Article 29, that negligence was not established and the Article 20 defence applied, and that the damages exceeded the statutory cap. By a two-to-one majority, the Court of Appeal dismissed the appeal. Bosire JA (with Onyango Otieno JA concurring) held that the trial court's treatment of the draft amended plaint as filed was irregular but not fatal, since both parties litigated the Convention issue fully and without prejudice; consent to leave to amend waived the limitation defence; negligence was properly inferred from the facts; the Article 20 defence failed for want of evidence of all necessary measures; and no proof was offered of the gold-franc currency value at the date of judgment to establish that the award exceeded the cap. Githinji JA dissented, holding that the cause of action was solely statutory, that pleading common-law negligence was a substantive error rendering the suit incompetent, that liability was based on speculation, that the Article 20 defence was made out on undisputed evidence, and that damages should have been capped at Kshs.1,306,286. The decision of the High Court was affirmed and costs awarded to the respondent.

Key legal issues

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01

Competence of suit for failure to file an amended plaint pleading the Carriage by Air Act

Holding

The failure to file the amended plaint and the court's suo motu treatment of the draft as filed were irregularities that did not invalidate the suit, since both parties litigated the Convention issue fully and without prejudice.

Reasoning

The trial judge directed the appellant to file an amended defence to the draft amended plaint, effectively regularising it. Following Odd Jobs v Mubia and Dhanji Ramji v Rambhai & Company, a court may decide an unpleaded statutory issue left to it at trial where the parties address it without prejudice. The appellant had ample notice the Act would be considered and was not prejudiced.

p. 4
02

Limitation under Article 29 of the Warsaw Convention

Holding

The limitation defence failed because the appellant consented to the leave to amend, waiving reliance on it.

Reasoning

The appellant contended the plaint was amended after the Convention limitation period expired. Bosire JA held that consent to the amendment was a waiver of the limitation defence; the submission therefore did not avail the appellant.

p. 5
03

Liability and the Article 20 statutory defence

Holding

The trial Judge correctly inferred negligence from the facts; the appellant could not rely on Article 20 as it did not prove it took all necessary measures to avoid the accident, and there was no contributory negligence by the respondent.

Reasoning

The balloon exploded before take-off; had all necessary steps been taken it would not have exploded. The pre-flight check could not be accepted as reasonable steps because reasonable checking would have detected the fault. A hot air balloon is an 'aircraft' under the Civil Aviation Act, so the Convention applies; liability is based on negligence, and the carrier bears the burden under Article 20, which it did not discharge.

p. 5
04

Quantum and the statutory cap

Holding

The appellant failed to prove the award exceeded the statutory maximum because no evidence of the gold-franc currency equivalent at the date of judgment was adduced.

Reasoning

The figure in L.N. 189 of 1993 represented the conversion rate on the date of publication (9 July 1993), not in 2004. Under Article 22(5), conversion in judicial proceedings is according to the gold value of the currency at the date of judgment, and the appellant provided no evidence of that value. Judicial notice was taken that exchange rates vary almost daily.

p. 6

Legal principles established

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  • A court may frame and determine an issue not covered by the pleadings, including an issue founded on a statute, where it appears from the course of the trial that the issue was left to the court for decision and no prejudice is caused to the other party.
  • An irregularity in procedure by a trial judge, including treating a draft amended plaint as filed, does not of itself invalidate the suit where the parties proceeded on that basis and no prejudice resulted.
  • A party that consents to leave to amend a pleading waives a limitation defence premised on the amendment being out of time.
  • Negligence may be inferred from the circumstances of an accident; a carrier relying on the Article 20 'all necessary measures' defence must adduce evidence of the specific reasonable steps taken, which a general pre-flight check will not satisfy.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) as amended by the Hague Protocol 1955Articles 1, 17, 20, 21, 22(1), 22(5), 24(1), 24(2), 29
  • Carriage by Air ActAct No. 2 of 1993, section 3, paragraph 2
  • Carriage by Air (Currency Equivalent) Order 1993Legal Notice No. 189 of 1993
  • Carriage by Air (Application of Convention) Order 1993L.N. 162 of 1993
  • Civil Aviation ActCap 394, section 2(1), section 3
  • Civil Procedure Rulesnull
  • Partnership Actsection 40(1)

Cases cited (5)

  • Odd Jobs v. Mubia
    [1970] EA 476
  • Dhanji Ramji v. Rambhai & Company
    [1970] EA 515
  • Shire vs. Thahiti Finance Co. Ltd
    null
  • Kihungi & Another vs. Iberia Airlines of Spain S.A.
    [1991] KLR 1
  • Byabazaire vs. Mukwano Industries
    [2002] 2 EA 353
On appeal from
High Court of Kenya (Nakuru, heard at Kisii)
HCCS No. 208 of 2001
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution (as then applicable); no specific constitutional or statutory article is cited in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transworld Safaris (K) Limited v Robin Makori Ratemo [2008] KECA 322 (KLR)", Case Analysis (2008). Civil Appeal No. 78 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/322/eng@2008-02-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.